State incentives offer polluters breaks to come clean

By Brian Nearing

Published 8:14 pm, Thursday, October 17, 2013

The state is asking businesses to report themselves if they break pollution rules, with the promise of lesser or no fines. There may even be a reward. Businesses could also cut deals quietly with the state to ensure their problems don't happen again.

The so-called Environmental Audit Incentive Policy, released by Environmental Conservation Commissioner Joe Martens this week, is drawing praise from industry, which said it will encourage businesses to clean up. But it is also drawing doubts from environmental groups, who said it shows the state is turning over too much oversight to industry.

He said the state's move to give industry more ability to watch over itself reflects a declining number of DEC inspections and inspectors in recent years. "The state is setting up a penalty-free zone for polluters."

Based on a report issued last month by Environmental Advocates, annual water pollution inspections dropped by 74 percent between 2009 and 2012, which meant most annual reports filed by industry on its water pollution went unverified by the state. Inspections of all facilities regulated for air, water or hazardous waste pollution dropped by 35 percent during that same period.

The declines mirror staff cutbacks in DEC enforcement workers for air and water quality, which fell by 235 positions. The number of pollution enforcement cases brought against violators dropped 24 percent.

DEC previously disputed the figures and conclusion of the report, and argued declining numbers show industry is polluting less, so there are fewer violations to find, and thus, less need for state workers to look for violations. That was similar to an argument made by the Business Council of New York State, an industry lobbying group, which said fewer firms are breaking pollution rules.

"This policy is an incentive toward the ultimate goal, which is compliance," said Ken Pokalsky, Business Council l vice president of government affairs. "This is not a substitute for inspection and enforcement."

On Thursday, Martens' office issued a news release with praise from the council, as well as the Associated General Contractors of New York and the New York Farm Bureau. Also quoted was the Long Island firm of Dvirka and Bartilucci Consulting Engineers, which in 2011 shared in a $50 million contract to provide standby engineer services to the DEC in support of hazardous waste, hazardous substances and petroleum spill response.

No environmental groups were quoted on the DEC release.

Under the new incentive program, industries will have penalties waived or reduced if they report pollution violations to DEC within 30 days of learning of them. Financial incentives, in the form of subsidies for energy conservation and environmental projects, would be available to those companies that stepped forward.

In such cases, DEC and the company would negotiate an audit agreement in which the company would fix the problem and follow steps meant to ensure it did not happen again.

Companies with enforcement histories for the same violation during the past five years, had failed to follow state cleanup plans, or had not cooperated in fixing problems, would be ineligible for the program.

Postiglione said the new policy replaces one that applied only to small businesses with 100 workers or fewer, and now includes "large-scale and high-risk permitted activities such as oil and gas drilling operations."

He also said self-reported violations and audit agreements, unlike current DEC enforcement actions, might not "see the light of day," meaning neighbors of polluters might never learn of the problems. The new rules call for the state Office of Counsel General to "periodically report on the progress made under the policy, including the number of entities who have participated and the type and number of violations reported and corrected."

Lisa King, a DEC spokeswoman, said those concerns were unfounded because the audit agreements will be public records.